Moore v Benowitz
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Moore v Benowitz 2011 NY Slip Op 33630(U) December 19, 2011 Sup Ct, Suffolk County Docket Number: 29609/2009 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Sl10rt Form Order SUPREME COURT - STATE OF NEW YORK CALENDAR CONTROL PART - SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.c. ----------------------------------------------------------------)( JOHN MOORE, an infant by his Mother and Natural Guardian LAURA MOORE. and LAURA MOORE individually, Plaintiffs, -againstJOAN BENOWITZ, Defendant. ----------------------------------------------------------------)( INDE)( NO.: 29609/2009 CALENDAR NO.: 20100 1704MV MOTION DA TE : 9/26/2011 MOTION SEQ. NO. : 003 MD PLAINTIFF'S ATTORNEY: SALZMAN & WINER, LLP 305 Broadway Suite 1204 New Yark, NY 10007 DEFENDANT'S ATTORNEY: FAUST GOETZ SCHENKER & BWE Two Rector Street New York, NY 10006 Upon the following papers numbered I to..l2.... read on this motion for preclusion. dc, : Notice of Motion I Order to Show Caus~ and supporting papers...l:..lL; Noliee dfClOj~ \jotioli tllld $Oppelttill", p!lpeu_; Answering Affidavits and supporting papers If; - 46 ; Replying-Aflidavits and supporting papers 47 - 49 , 6theT_; (lliid "liet heating cotlli~cl ilt ,Mpp6i1 tmd oppo$cd 10 the iimlioll) it is, ORDERED that the motion by defendant for, inter alia, an order precluding plaintiffs from presenting evidence at trial or vacating the note of issue is denied. This action arises out of a motor vehicle accident which occurred in the parking lot of a shopping center on May 30, 2009. The accident allegedly happened when a vehicle operated by defendant Joan Benowitz struck a parked vehicle, which was owned by plaintiff Laura Moore. The force of the impact allegedly propelled the parked vehicle into plaintiff and her infant son, John Moore, both of whom had exited the car and were standing in the parking lot. By order dated March 5, 2010, plaintiffs were granted summary judgment in their favor on the issue of liability. A review of the Court's computerized records shows that a note of issue and certificate of readiness were filed by plaintiffs on August 9, 2010. Thereafter, in May 2011, this Court granted an application to conduct out-of-state depositions of infant plaintiff's treating physicians and psychologist, and directed that the records of such witnesses and the institutions they work for be provided to defendant's attorney 14 days prior to the depositions. The depositions were conducted the following month in North Carolina, where plaintiffs currently reside. Defendant now moves for an order precluding plaintiff ii-om presenting evidence at trial as to "items demanded by defendant, but not disclosed until after the plaintiffls] filed their note o1'is5ue," arguing she was prejudiced by an alleged failure to provide certain medical records prior to the independent examination of infant plaintiff and the out-of-state depositions of infant plaintitl's treating physicians. Alternatively, defendant seeks an order vacating the note of issue and stnking the case from the trial calendar. In addition, defendant seeks leave to conduct a further physical examination of plaintitT", and leave file a late motion for summary judgment. Defendant's submissions in support of the motion include copies ofthe pleadings, the note of issue and certificate of readiness, and letters sent by plaintiffs counsel in April, June and July 2011 responding to demands for disclosure. [* 2] .101m Moor,' ('/ (/1. II.lOilll l/ie/ex No. 2960912009 jJe/lOwil; PlainliiTs oppose the motion, argumg that defendant has been provided with all appropriate authorizations and medical records, and that additional authorizations and records were provided in 20 I J, because plaintiffs, particularly infant plaintirt~ continue to receive treatment for the physical and mental injuries allegedly suffered due to the suqject accident. Plaintiffs further allege that they complied with the provision of the May 2011 order requiring them to provide defendant with copies of the medical records of the out-of-state health care providers related to their treatment of infant plaintiff. In addition, plaintiffs point out that the affirmation of defendant's attorney submitted in support or the motion does not contain any arguments or allegations pertaining to the applications set forth in the notice of motion for a further physical examination of plaintiff and for an extension of the time to make a summary judgment motion. In reply, defendant asserts that she did not have the complete medical records of infant plaintifrs treating physicians prior to the depositions conducted in June 2011, and that she should be afforded an opportunity to conduct a further deposition of such witnesses "should there be additional medical records be [sic) received ... through the processing of the authorizations." She also argues that all psychiatric claims should be withdrawn ifinfant plaintiff refuses to submit to a further physical examination, as a complete record of his psychiatric treatment was not available prior to the filing of the note ofissuc. Although parties to litigation are entitled to "full disclosure of all evidence material and necessUlY in the prosecution or defense of an action, regardless of the burden of proof' (CPLR 3101 [aD, the filing of a note of issue and certificate of readiness denotes the end of the discovery phase of litigation (Arons v.!ulkowtiz, 9 NY3d 393, 411,850 NYS2d 345 [2007}; see Tirado Ii Miller, 75 AD3d 153,901 NYS2d 358 [2d Dept 2010J). A pat1y seeking discovery after the tiling ofthc notc o!'issue, therefore, must move to vacate the note within 20 days after service of the note of issue and submit an affidavit demonstrating that the case is not ready for trial (22 NYCRR 202.21 [e D. A party seeking additional discovery aftcr expiration of the 20-day period provided in 22 N yeRR 202.21 (e) must show ·'unusual or unanticipated circumstances dcvelop[edJ subsequent to the filing of the note of issue and ccrlillcate of rcaclmess which requirc additional pretrial proceedings to prevent substantial prejudice" (22 NYCRR 202.21 ld]; see Ulica Mill. Ins. Co_ Ii P.M.A. Corp., 34 AD3d 793, 826 NYS2d 138 [2d Dept 2006]; Audiovox Corp. 11 Bcnyomini, 265 AD2d 135, 707 NYS2d 137 [2d Dept 2000]). further, thc Uniform Rulcs ror Trial Courts (22 NYCRR) ~202.7 (a) provides that a motion relating to disclosure musl be supported by an affirmation that moving counsel "has conlerred with counsel for the 0ppOSlllg party in a good faith effort to resolve the issues raised by the motion." The applications tor vacatur of the note ofissuc and for leave to conduct a further physical c\:amination of innmt plaintiff arc denied. Abscnt from the moving papers is an affirmation by dcfendant"s attorney showing a good faith cffort was in fact made to resolve the disputc regarding plaintiffs' obligation to provide further disclosure (see Mironer l' City ofNe\l' York, 79 i\D3d 1106.915 NYS2d 279l2d Dept 201 0]: Natoli II Milazzo, 65 1\.])3d 1309.886 NYS2d 205 Pd Dept 2009-1: Walter B. A4elvin. Architects. L/,C v 2~ Aqueduct Lane (·olldollliniulII. 51 AD3d 784. 857 NYS2d 697 [2d Dept 2008.1). Even if a proper affirmation of good faith had been included with the moving papers, thc application for an order vacating the note of issuc is untimcly. having been made more than one year ancr the tiling of the note of issue (see Tirado v Mil/er. 75 AD3d 153,901 NYS2d 358; S'ehroeder v IESI NYCUljJ_. 24 AD3d 180, 805 NYS2d 79 IIst Dcpt 20051. Audiovux Corp. \I Benyamin;, 265 AD2d 135, 707 NYS2d 137). -2- [* 3] John Aioore <'I al. l' JOWl BeNo\vil:: index No, ]9(j1N/lJiO'J As to the application for a further physical examination of infant plaintiff: defendant also failed to demonstrate unusual or unanticipated circumstances arose subsequent to the filing of the note of issue warranting additional disclosure, and that she wi\] be substantially prejudiced if another examination is not permitted (see ,(,'algado v Town Sj)orls In/!., 73 AD3d 898, 901 NYS2d 325 [2d Dop! 20] 0]; Singh v City o{New York, 68 AD3d 1096, 890 NYS2d 333 12d [loP! 2009]). Significantly, defendant does not controvert the allegation by plaintiff,;' counsel that plaintiffs, particularly infant ptaintin~ continue to receive treatment for in.1uries resulting from the accident, that updated medical records have been disclosed to defendant's counsel as they are created, and that all available medical records prepared by the out-or-state witnesses had been disclosed prior to their depositions. Rather, in her reply, defendant simply alleges ·'it is not certain if [she] was provided with complete records," and that she "did not have an opportunity to obtain the records directly from the medical providers prior to the video deposition[sj." Defendant also docs not indicate that there was new information contained in the recently disclosed medical records that would be the basis for conducting a second physical examination of infant plaintilT. The application to preclude plainti rr from introducing evidence at trial of "items demanded by the defendant, but not disclosed until after the plaintiffs filed their note of issue," is denied, \vithout prejudice to renewal at trial. As mentioned earlier, in May 20ll, this Court granted plaintiffs' application to conduct out-of-state, post-note of issue depositions of infant plaintiff's treating physiC1ans and psychologist In arguing that plaintiffs should be precluded from offering evidence regarding infant plaintiff's condition that \-vasdisclosed after the filing of the note of issue, defendant, in effect, improperly is attempting to reargue plaintiff's application for leave to conduct such depositions. Further, other than a copy of the prelimmary conference order executed by the parties' counsel in December 2009, defendant failed to support the motion with copies or wnlten demands for disclosure of plaintiff,>' medical records. Thus, the COUl1 is unable to ascertain which demands for disclosure, if any, defendant allegedly failed to comply with, whether such demands ""veremade during the disclosure phase of this action, and what speCific evidence defendant seeks to preclude. It is noted that the function of a 1110tionin limine is to permit a party, before or dunng a triaL to obtain a preliminary order excluding the introduction of anticipated inadmissible, immaterial or prejudicial evidence or limiting the use of such evidence (5,'/afe l?lNnj! York v Me!:c, 241 AD2d 192, 198, 671 NYS2d 79 [1st Oept 1998]). A trial judge has broad discretIon as to the admISSIbility of evidence offered at trial (see Radosh v ,')'hipstad, 20 NY2d 504, 285 NYS2d 60 [1967]), and a ruling on a motion in limine, even when made in advance (lftrial and on paper, constitutes only an advisory opinion, which is not appealable as of right or by permission (j.YinoRmd I' friee, 21 AD3d 956, 956, 800 NYS2d 649 [2d Dcpt 2005]). Delcndant. if she ISso 1l1clined,may seek rulings at the time of trial regarding the admissibility of the documentary evidence at issue, when determinations of relevance may be made in context (see (irant v Richard, 222 AD2d 1014,636 NYS2d 676 [4th Dept 1995]; Speed v Avis Renl-A-Car, 172 AD2d 267, 568 NYS2d 90 [I s! flop! 199]]). Finally, the application for leave to tile a late summary judgment motion IS denied. CPLR 3212(a) provides that ifno date for making a summary judgment mol ion has been set hy lhe court, such a motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." Absent a showing of good [* 4] John .Hoore ';1 ,,/. v .10(11) [iii!!.' ¢ ¢ No. 21)(,(J'J/2()1I9 BCl'lowir; causc for the delay in filing a summary judgment motion, a court lacks the authority to consider even a meritorious, non-prejudicial application for such relief (see Miceli v State Farm Mut. Al/to. Ins. Co., 3 NY3d 725, 786 NYS2d 379 [2004]; Bril! v City of'!'/ew York, 2 NY3d 648, 781 NYS2d 261 [2004]). Here, the statutory 120-day period for making a summary judgment motion expired on December 7, 20 I0, and defendant offered no explanation for failmg to make a timely motion for such relief PAUl J. BAISl.EV, JR. Dated: December 19, 2011 J.s.c. -4-
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